At What Point in Pregnancy Does a Woman’s Personhood End?

"I think the effort to restrict abortion has been a backlash, not just to the decision to end a pregnancy but the decision to treat women like full and equal participants in our society." That's the conclusion drawn by Lynn Paltrow, executive director of National Advocates for Pregnant Women, after years of working with women who've been incarcerated on charges of feticide or fetal homicide

At work while pregnant? Driving? Working with chemicals or heavy loads? You better know the legal code, says Paltrow. In many states, if something were to happen to your pregnancy that could be traced to your behavior, you could find yourself dragged into jail under fetal protection or personhood laws.

Even progressive interviewers will talk about personhood measures as if their only impact is going to be on abortion, says Paltrow. In fact, "We are talking about the status of women and whether you can add fertilized eggs, embryos and fetuses to the Constitution without subtracting pregnant women from it. You cannot."

A case in point is Bei Bei Shuai, who has been incarcerated for more than a year facing charges of murder and attempted feticide in Indiana after she attempted to take her own life while she was in her third trimester of pregnancy.

"This is really is a national issue," Paltrow told GRITtv. "Will Indiana become a first state to declare a system of separate and unequal law for pregnant women, a new Jane Crow?"

The term is aptly chosen because the last time the United States saw an anti-abortion, pro-criminalization drive like this was in the bitterly divided years after the Civil War. At issue then (as now) were economic insecurity, racial anxiety, and a growing gap between rich and poor. Then and now, the assault on women's rights was combined with an assault on workers' rights and civil rights. Then as now, the drive to control women was fronted by a fight over access to abortion and birth control; it was about social control, democracy and economics. And then and now, wrapped up in it all was the curious question of "personhood." (For more on the history, see this report on "Legitimate Rape, Sluts and Femi-Nazis" written for the Rosa Luxemburg Foundation last fall.)

What follows is a rough transcript of our conversation in full. You can sign up for video of more provocative conversations like this one at GRITtv.org.

Laura Flanders: Didn't voters last fall send a pretty strong message when they rejected the GOP's anti-choice platform and its candidate?

Lynn Paltrow: After the election, people felt like there was a big message sent and there was a response to anti-choice legislators like Todd Akin, who revealed what was behind their anti-abortion mask … What's really underneath all this started to be revealed, and nationally, there was an outcry. But state elections for judges and state legislatures in some states became even more conservative, even more willing to pass laws that actually jeopardize the health and lives, not only of women, but also of children.

What's happening in North Dakota right now?

North Dakota's legislature, among a number of states like Arkansas, has passed a series of laws. They have passed a provision that will put a so-called personhood measure on the ballot, that would declare fertilized eggs, embryos and fetuses separate constitutional persons. They (also) passed a measure limiting abortions after 20 weeks and probably closing the only clinic that exists by requiring doctors who work at that clinic to have special privileges and approvals from local hospitals. (Those hospitals are then put under pressure to not give them those privileges.)

What about the situation in Arkansas?

From the way we see it [the question is] at what point in pregnancy does a woman's personhood end? In Arkansas, they are saying that after 12 weeks, you can't get an abortion. What people forget is that an abortion is a procedure that helps a woman who has an ectopic pregnancy, who has something wrong with her pregnancy where she might have a severe infection (like the woman in Ireland who was allowed to die because they wouldn't treat her for an infection as her doctors were saying that there was still a [fetal] heartbeat). You're really saying that after 12 weeks, women are not entitled to the fundamental health care that they need.

What do you think is really going on here? What's the end game?

What's the end game? I think it's a number of things. The abortion issue has, for a long time, like gay marriage and the drug war, been used to distract people's attention from fundamental economic issues and social justice issues …

I think this is also a backlash. Women, at least in appearance, have more equality than ever in US history and probably world history, and we're hearing more and more about extraordinary violence against women, not only in the United States, but all over the world. For a long time, I think the effort to restrict abortion has been a backlash not just to the decision to end a pregnancy, but to the decision to treat women like full and equal participants in our society.

What did your journal article find that pertains to this?

We have seen an enormous number of laws put in place since Roe v. Wade … so-called feticide laws. [They're] usually passed in a wake of a vicious attack on a pregnant woman. [In such attacks] she dies, she loses the pregnancy, and the anti-choice movement comes in with legislation to create a special crime for killing the fertilized egg, embryo or fetuses as if it is a separate person.

The promise is that this will reduce violence against pregnant women and protect the unborn and it has nothing to do with abortion or anything else. What we found is that both of those kinds of measures have been used to justify the arrests, the detentions of, and forced interventions on, pregnant women, most of whom who are not seeking to end their pregnancies. It's providing the legal basis for locking up and tying down pregnant women.

When you say forced intervention, you're talking about even surgery. Give us some examples.

Well, there are two pieces to this. Melissa Rowland in Utah gave birth to twins; one was stillborn. She was arrested under the state's feticide law under the claim that by refusing cesarean surgery two weeks earlier than she ultimately had it, she caused the loss of one of the newborns.

There are also cases like Laura Pemberton, a woman who had a previous cesarean, didn't want to undergo another one if she didn't need to (she wasn't opposed to them), but every hospital in her region said you cannot have a trial labor at our hospital. [They said, in effect:] "If you, as a pregnant woman, want services here, you have to agree to be cut open whether you need to or not." So she began labor at home, hoping she would deliver there without the need of [surgery]. The hospital found out and sent a sheriff to her house, took her into custody, strapped her legs together while she was in active labor, took her to the hospital, where she had no opportunity to talk to a lawyer or have any semblance of due process before they cut her open. They cut her open and forced her to have the surgery.

The doctors claimed that having had the previous cesarean if she didn't [have another], she was jeopardizing the baby's life as well as her own. The end of that story is that she subsequently went on to have three more children – two twins – all vaginally, suggesting not only that the doctors are not infallible, but also that relying on them to decide what rights you have is a big mistake.

This goes way beyond anything to do with abortion to matters of public health and women's right to choose all sorts of things like what kind of health care she wants.

It's not just what kind of health care she wants. What we see in these cases – and this is part of the struggle we're having – is when people see a pregnant woman, they tend to only think about reproductive rights, but the 413 cases we documented (and we know that to be a substantial undercount) between 1973 and 2005, each of these cases isn't just about her pregnancy. In the Laura Pemberton, case she is deprived of her physical liberty … she's deprived of fundamental due process. Before you can subject somebody to some kind of punishment that the government orders, you're entitled to representation, a trial, hearings witnesses, absolutely. You don't get those things …

Not if you're pregnant.

Not if you're pregnant … She lost the right to medical decision-making, bodily integrity – all of the characteristics we recognize as part of being a constitutional person …

One of the earliest cases I worked on was one in which claims of separate rights of the fetus were used to justify four cesarean surgeries on a woman [who then] died, as well as the baby. That's [infringing on her] right to life!

I think we have been so programmed to talk about the "right to choose" and "my body, my rights" that we miss the fact that the state action increasingly happening in this country (even though it's not authorized by law), is one that is taking away women's personhood, the whole panoply of rights – including religious freedom. In some cases, women religiously oppose blood transfusions and even examination by doctors, and courts have ordered it. One of them said, of course pregnant women have the right to religious freedom unless it is opposed to that of the unborn child.

What we're seeing is this move towards a society in which upon becoming pregnant, women lose their civil and human rights.

If that's the case, and you make a very persuasive case, what does it demand of those who are concerned about rights, about reproductive rights, but it sounds like personhood rights for women? What's needed to change in our movements and in our politics? For example where are the Democrats on these questions?

I think all politicians follow the people, and I think what we can do to start with is broaden our base. I think that base includes a lot of people who identify as "pro-life" but who are really pro-lives. In other words, they don't just value one life when they look at a pregnant woman, they don't only value the unborn child … They also value pregnant women and women who have abortions and women who are overwhelmingly mothers, and they don't want to see them go to jail.

Part of our work is to make people understand that when the anti-abortion movement promises that if personhood measures pass, if Roe is overturned, only doctors will go to jail … In 2013, we have to say, "Wake up, this is not your mother's 1973. [In '73] we did not have a system of mass incarceration; we did not have a prison-industrial complex, and we did not have a multibillion-dollar-a-year drug-screening industry…

Once you are urine-screening people in their workplace for drugs, you can just as easily test them for pregnancy and [watch] women to find out when they're pregnant and when they can be subject to all other series of laws.

[We need to say] that women are already going to jail for having abortions in the United States, so that, while there are people who profoundly oppose abortion, profoundly value unborn life, they don't want to see mothers – literally hundreds of thousands of women – become fodder for our prison-industrial complex.

And the Democrat question?

Well, I think that they have been asked to do fairly little. They have been asked to defend certain rights around access to abortion. I think what we have to make them understand is that much more is at stake. They not only have to defend the right to make a decision to have an abortion, but we need to have a health care system that supports all pregnant women, whatever their decisions are. We have a 30 percent cesarean rate that isn't about the need of women; it's about the over-medicalization of pregnancy.

Women have to be guaranteed that when they make a decision about their pregnancy, a doctor (as just happened two weeks ago in Florida) isn't going to send an email that says "If you don't show up today for your cesarean surgery (that you already have scheduled two days from now), I will send police to your house." He literally wrote that to this woman, and you have to wonder what's happened in America that gives a doctor, who is otherwise thought to be a very good guy, the sense that he can send a letter to his patient saying, "If you don't do what I want you to do today, I have the power to call police and send them to your house"?

Is there historical precedent here?

Well, in fact, abortion wasn't illegal in the United States until the late 1800s. The way it was made illegal was not through a religious movement, it was a response to a dropping birth rate of white people, which is where we are now – white people are not going to be the majority for long. There was rising immigration and xenophobia, and there was the beginning of the suffrage movement, and women's equality, which male doctors and professionals understood was very threatening to their power. They went to the state legislatures to put midwives and others out of business and empower themselves to have control over women, and that's how abortion became criminalized. [It was] a response to rising immigration, lower birth rates in a time where we were (also) switching from agrarian to industrial. In industrial society, people were frightened; they didn't know what was going to happen, and we're in that moment again. People don't know how they're going to make a living in a post-industrial age, so they appeal to people's biggest fears, of, How does family work? Who's going to take care of the children? What role am I going to have in my life? They play into those fears so people don't see that we could be working together to create an economy that supports everybody and isn't just a mechanism for transferring wealth to the wealthiest.

So, in the list of things undone, is part of the problem that we never established women's equality under the law in this country, not yet? An Equal Rights Amendment?

We are seeing specific cases where state attorney generals, including the attorneys general of Indiana and Mississippi, are arguing that because women are not physiologically the same as men, they can be punished for things that men cannot be punished for. I'm talking about potential life sentences in prison.

Bei Bei Shuai in Indiana became so depressed during her pregnancy that she attempted to kill herself; friends found her; she survived; she did everything she could to have the baby survive, too, including undergoing cesarean surgery. The baby was born alive and did not survive, and she's been charged with murder of a viable fetus and attempted feticide, a crime that goes back to the action of a fertilized egg. The argument [the prosecutors are] making is that we don't criminalize attempted suicide for men, but we can criminalize it for Bei Bei Shuai and for pregnant women because they have the capacity to reproduce.

What kind of law could correct that?

Two things … [First, we have to clarify:] Right now we have feticide laws that were passed not admitting that they were going to be used against pregnant women, and somehow pregnant women are supposed to know that if the word "fetus" (or now, in Alabama, the word "child") is in the criminal statute, it means pregnant women can be subject to special crimes.

[As for an Equal Rights Amendment], many people forget that mainstream feminist organizations decided that their best chance of winning the ERA was saying that it wouldn't affect the abortion debate; it would not affect reproductive rights – and part of what that did was make it something that was not so appealing to fight for.

I think … the question really is, are we going to have a whole set of separate and unequal laws for women? And the solution we may have to turn to is a "true" equal rights amendment that explicitly says that upon becoming pregnant, women retain their rights to personhood. What we may need is an equal rights amendment that explicitly says that upon becoming pregnant and throughout all stages of labor and delivery, a woman retains her personhood.